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SUPREME COURT OF INDIA
KESHAVDEO
Versus
State of Uttar Pradesh
Decided on : October 16, 1998
SENIOR ENGINEERS - SENIORITY LIST - PROMOTIONS - DIRECT RECRUITS - SERVICE RULES - INTERPRETATION - UTTAR PRADESH SERVICES OF ENGINEERS (BUILDINGS AND ROADS BRANCH), CLASS-II RULES, 1936 - RULE 5, 6, 12, 23(D) - SERVICE RENDERED BY PROMOTEES BEFORE APPOINTMENT IN ACCORDANCE WITH RULES - COUNTING FOR SENIORITY - AD HOC APPOINTMENTS - REGULARISATION - SENIORITY FROM DATE OF REGULARISATION - DIRECT RECRUITS APPOINTED TO PERMANENT POSTS - SENIORITY FROM DATE OF APPOINTMENT - AD HOC SERVICE NOT COUNTED - OFFICIALS APPOINTED TO POSTS ACCORDING TO RULES - SENIORITY FROM DATE OF APPOINTMENT - OFFICIALS APPOINTED IN VIOLATION OF RULES - SENIORITY FROM DATE OF REGULARISATION.
Fact of the Case:
The appellants, Overseers in the Public Works Department (PWD), Uttar Pradesh, were promoted to the post of Assistant Engineers on an ad hoc basis in 1979. They were later approved by the Public Service Commission (PSC) in 1984. Respondents 3 and 4 were directly appointed as Assistant Engineers in 1979. In 1995, a seniority list was published, placing the appellants below respondents 3 and 4. The appellants challenged the seniority list, arguing that their seniority should be counted from the date they began officiating as Assistant Engineers, not from the date of their approval by the PSC. The High Court quashed the seniority list, holding that it violated the decision of the Supreme Court in P. D. Aggarwal v. State of U. P. (1987) 3 SCC 622.
Finding of the Court:
The Supreme Court held that the impugned seniority list of 1995 prepared by the Government pursuant to the directions contained in D. N. Saksena and V. K. Yadav is in accordance with the Rules and cannot be interfered with on the ground that promotees have been given the benefit of their service in officiating capacity.
Issues: 1. Whether the appellants are entitled to seniority on the post of Assistant Engineers from the date they have been officiating as such or from the date they were selected and approved by the Commission? 2. Whether the appellants can be deprived of the benefits of their officiating service prior to the approval of the Commission for the purpose of seniority in view of the fact that the delay in granting approval for making them regular on the post of Assistant Engineer was attributable to the State Government and the Commission, as the appellants were fully qualified to be appointed and approved as Assistant Engineers even on the date, they were appointed to officiate as such? 3. Whether the High Court was right in reopening the issues which have been decided in favour of the promotees by three different Division Benches of the same Court without referring the matter to a Larger Bench?
Ratio Decidendi: 1. The seniority of Assistant Engineers appointed under the Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which they were appointed in a temporary capacity. 2. The period of service rendered by the ad hoc appointees before their service had been duly regularised in accordance with the regularisation rules, cannot be taken into account in reckoning their seniority in service and that their seniority will be counted only from the date when such ad hoc appointees after regularisation in accordance with concerned rules had become members of the service. 3. Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
Final Decision: The judgment of the High Court is unsustainable and it is set aside. The Writ Petition filed by respondents 3 and 4 is dismissed.
Judgment
SRINIVASAN, J.
( 1 ) THE first appellant was appointed as an Overseer (re-designated as Junior Engineer) on ad hoc basis in Public Works Department (for short P. W. D.), State of Uttar Pradesh on 17-7-1970 and was approved by the Public Service Commission, U. P. (for short the Commission) on 30-6-1973. The second appellant was directly appointed as Overseer substantively in the said department through the Commission on the same day. Both the appellants were holders of Diploma in Civil Engineering. In May, 1978 they passed an examination known as Associate Member of Institution of Engineer (India), Section A and B, equivalent to B. E. Degree. On 30-5-1979 the appellants were promoted to the post of Assistant Engineers on ad hoc basis. The said promotions were made within the quota of posts reserved for the promotees according to the relevant Service Rules by the Departmental Promotion Committee consisting of Secretary, Prosecution witness D. , Chief Engineer, Prosecution witness D. and Chief Engineer, Irrigation Department. The appointment orders stated that the promotion was being made to cope up with the work load in the Department since Assistant Engineers approved by the Commission were not available and that the promotions were only for a period of one year. Since then, the appellants have been working uninterruptedly on the post of Assistant Engineers.
( 2 ) RESPONDENTS 3 and 4 were selected through the Commission and appointed directly as Assistant Engineers in the P. W. D. by order dated 9-8-1979. The Commission held in the year 1980, an interview of some of the promotees to be considered for the post of Assistant Engineers. The appellants have a grievance that though their juniors were called for interview, they were not considered without any reason therefor. However that grievance is outside the scope of the present controversy. In the interview held in the year 1984, the appellants were also called and they were duly approved and selected by the Commission. Consequently, they were confirmed as Assistant Engineers.
( 3 ) IN the meanwhile, one D. N. Saksena, who was an ad hoc promotee as Assistant Engineer in the year 1970 just like the appellants and approved by the Commission in the year 1980, filed a Writ Petition in the High Court namely W. P. No. 1536 of 1981, claiming seniority in the post of Assistant Engineer from the date of initial appointment and officiation on the said post. That writ petition was treated to be one in representative capacity and notice was given to all concerned through the newspapers. A Division Bench of the High Court upheld on 4-7-1989 the claim made by the petitioner in the said Writ Petition and held that the promotees should be assigned seniority from the date of continuous officiation and not from the date of approval by the Commission.
( 4 ) A similar controversy inter se the promotees and direct recruits arose in another Writ Petition No. 8966 of 1989 which was decided on 17-1-1990. There also the same view was taken by another Division Bench which was challenged in S. L. P. (C) No. 4878 of 1990, V. K. Yadav v. State of U. P. in this Court. The S. L. P. was dismissed on 19-11-1990.
( 5 ) THE judgment in the case of Saksena referred to earlier was assailed in this Court in S. L. P. (C) No. 9343 of 1990, C. P. Sharma v. State of Uttar Pradesh and others. The appellant therein placed reliance on the judgment of this Court in P. D. Aggarwal v. State of U. P. (1987) 3 SCC 622 : (AIR 1987 SC 1676 ). By judgment dated 1-2-1991, the S. L. P. was dismissed by this Court.
( 6 ) PURSUANT to the aforesaid judgments the State Government gave benefit of seniority to the promotees. A seniority list was published, vide letter dated 3-12-1984 issued by the Secretary, Government of Uttar Pradesh inviting objections against the same. After considering the objections filed by the direct recruits, a final seniority list was prepared and published, vide Notification dated 11-7-1995. The first ap
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